State v. Crespo ( 1997 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    JUNE 1996 SESSION             FILED
    April 29, 1997
    STATE OF TENNESSEE,                           )                Cecil Crowson, Jr.
    Appellate C ourt Clerk
    )
    APPELLANT,               )
    )      No. 03-C-01-9504-CR-00118
    )
    )      Sevier County
    v.                                            )
    )      Ben W. Hooper, II, Judge
    )
    )      (Sentencing)
    KEVIN CRESPO,                                 )
    )
    APPELLEE.                 )
    FOR THE APPELLANT:                                   FOR THE APPELLEE:
    Charles W. Burson                                    Kevin Crespo, Pro Se
    Attorney General & Reporter                          P.O. Box 155
    500 Charlotte Avenue                                 New Market, TN 37820
    Nashville, TN 37243-0497                             (Appeal Only)
    Michael J. Fahey, II                                 Charles R. Edwards, Jr.
    Assistant Attorney General                           Attorney at Law
    450 James Robertson Parkway                          129 Commerce Street
    Nashville, TN 37243-0493                             Sevierville, TN 37862
    (Trial Only)
    Alfred C. Schmutzer, Jr.
    District Attorney General
    125 Court Avenue, Room 301-E
    Sevierville, TN 37862
    G. Scott Green
    Assistant District Attorney General
    125 Court Avenue, Room 301-E
    Sevierville, TN 37862
    OPINION FILED:________________________________
    APPEAL DISMISSED
    Joe B. Jones, Presiding Judge
    OPINION
    The State of Tennessee appeals from the sentences imposed by the trial court.1
    The state contends the trial court abused its discretion by (a) failing to impose the fines
    recommended by the jury2 and (b) requiring the defendant to make restitution in an amount
    less than the amount of damages found by the jury. 3 After a thorough review of the record,
    the brief of the state, and the law governing the issues presented for review, it is the
    opinion of this Court the state does not have a right to appeal the issues presented for
    review. Therefore, the state's appeal is dismissed.4 It is parenthetically noted that if this
    Court could consider the issues presented for review, the Court would affirm the judgment
    of the trial court.5
    1
    
    Tenn. Code Ann. § 40-35-402
    (d).
    2
    The amount of the fines determined by a jury sets the upper limitation of the fine
    a trial court can impose. However, a trial court is not required to impose a fine
    notwithstanding the jury has recommended the amount of the fine. The applicable statute,
    
    Tenn. Code Ann. § 40-35-301
    (b), provides in part: “[T]he jury finding the defendant guilty
    shall also fix the fine. . . . The jury shall report such fine with a verdict of guilty. When
    imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not
    to exceed the fine fixed by the jury. . . .” (emphasis added).
    3
    In this jurisdiction, a “sentencing court may direct a defendant to make restitution
    to the victim of the offense.” 
    Tenn. Code Ann. § 40-35-304
    (a). However, there is no
    designated formula or method for the computation of the amount of restitution. State v.
    Smith, 
    898 S.W.2d 742
    , 747 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995). The
    trial court must consider the “pecuniary loss” incurred by the victim, 
    Tenn. Code Ann. § 40
    -
    35-304(e), as well as “the financial resources and future ability of the defendant to pay or
    perform.” 
    Tenn. Code Ann. § 40-35-304
    (d). The amount determined by the trial court
    must be reasonable. 
    Tenn. Code Ann. § 40-35-303
    (d)(10). Furthermore, “the amount
    ordered to be paid does not have to equal or mirror the victim's precise pecuniary loss.”
    Smith, 
    898 S.W.2d at 747
    .
    4
    The statute which provides the state with the right to appeal sentencing issues,
    
    Tenn. Code Ann. § 40-35-402
    , limits the right to certain enumerated grounds listed in the
    statute. The statute does not provide the state with the right to appeal questions
    concerning fines and restitution.
    5
    The presentence report reveals the defendant does not have a high school
    diploma. He has worked as a carpenter, and he supported his wife and child. When the
    defendant was sentenced, he was not able to work due to an injury to his back. He did not
    have any other source of income.
    The state did not offer any evidence to establish the defendant’s financial resources
    or ability to pay a fine and restitution. The state did not question the defendant when he
    testified at the sentencing hearing.
    (continued...)
    2
    _____________________________________________
    JOE B. JONES, PRESIDING JUDGE
    CONCUR:
    ______________________________________
    GARY R. WADE, JUDGE
    ______________________________________
    PAUL G. SUMMERS, JUDGE
    FILED
    April 29, 1997
    Cecil Crowson, Jr.
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    Appellate C ourt Clerk
    AT KNOXVILLE
    (...continued)
    Based on this evidence, the state has failed to overcome the “presumption that the
    determinations made by the [trial] court from which the appeal is taken are correct.” 
    Tenn. Code Ann. § 40-35-402
    (d).
    3
    JUNE 1996 SESSION
    STATE OF TENNESSEE,                            )
    )
    APPELLANT,                         )
    )     No. 03-C-01-9504-CR-00118
    )
    )     Sevier County
    v.                                             )
    )     Ben W. Hooper, II, Judge
    )
    )     (Sentencing)
    KEVIN CRESPO,                                  )
    )
    APPELLEE.                              )
    SEPARATE CONCURRING AND DISSENTING OPINION
    I concur in the results reached by the majority in this case; however, I must
    respectfully disagree with some of the reasoning. The majority parenthetically noted that
    if it could consider the state's issues, it would affirm the judgment of the trial court. I agree.
    A trial judge has the power to release a defendant from payment of fines, in whole or in
    part, pursuant to 
    Tenn. Code Ann. § 40-24-102.6
     Also, 
    Tenn. Code Ann. § 40-35-301
    (b)
    supports this proposition. The record reveals that the jury set fines totaling $12,500. The
    trial judge waived the entire amount of fines imposed against the appellant. I believe this
    was the judge's prerogative.
    Also, a trial judge may direct the payment of restitution to the victim as a condition
    of probation pursuant to 
    Tenn. Code Ann. § 40-35-304
    . This Court has held that when
    restitution is ordered as a condition of probation, the authority to determine the
    appropriateness and the amount of restitution lies solely with the trial court. State v.
    McKinney, 
    1994 WL 592042
     (Tenn. Crim. App. Oct. 26, 1994). The trial judge reduced
    the amount of restitution awarded by the jury. This action was the judge’s prerogative.
    The majority concludes that the state does not have a right to appeal questions
    concerning fines and restitution. Such holding is based upon the language of Tenn. Code
    6
    Release of fines and forfeitures- The seve ral courts in which a cause is finally adjudged are authorized,
    either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them,
    from the whole or any part of fines or forfeitures accruing to county or state. 
    Tenn. Code Ann. § 40-24-102
     (1990).
    4
    Ann. § 40-35-402, which limits the state's right to appeal to certain enumerated grounds.
    Questions concerning fines and restitution are not explicitly listed in the statute. It is with
    this issue that I respectfully disagree with my colleagues.
    The first sentence of 
    Tenn. Code Ann. § 40-35-402
     states: "[t]he district attorney
    general in a criminal case may appeal from the length, range or manner of the service of
    the sentence imposed by the sentencing court." 
    Tenn. Code Ann. § 40-35-402
    (a) (1990).
    Our Supreme Court has stated that the term "range of punishment" refers to a fine in
    excess of fifty dollars. State v. Bryant, 
    805 S.W.2d 762
    , 765 (Tenn. 1991). Based upon
    this, I find that questions concerning fines and restitution are encompassed in the broad
    language of 
    Tenn. Code Ann. § 40-35-402
    . I find that the state does have a right to appeal
    questions concerning fines and restitution.
    __________________________
    PAUL G. SUMMERS, Judge
    5
    

Document Info

Docket Number: 03C01-9504-CR-00118

Filed Date: 4/29/1997

Precedential Status: Precedential

Modified Date: 3/3/2016